Pins Blame for Censorship on Biden Administration  Alphabet’s recent letter to Rep. Jim Jordan, Chairman of the House Judiciary Committee, was nothing short of a white-flag surrender from the world’s most prolific social media company. Yes, Google’s parent company, which also owns YouTube, finally admitted what conservatives have said all along – the Biden administration leaned on social media companies to censor conservative voices. Here’s the money quote: “[A]dministration officials, including President Biden, created a political atmosphere that sought to influence the actions of platforms based on their concerns regarding misinformation.” And then this stunner: “It is unacceptable and wrong when any government, including the Biden Administration, attempts to dictate how the Company moderates content, and the Company has consistently fought against those efforts on First Amendment grounds.” Translation: The White House bullied us, and we caved. As we’ve reported, that administration used quiet coercion to remove conservative content, ranging from reviews of content by eighty FBI agents, to taxpayer-funded efforts to quietly dissuade companies from running ads in conservative and libertarian news sites and magazines, to White House officials picking up the phone and screaming at senior people at Meta. Alphabet now vows to accept deplatformed speakers: “No matter the political atmosphere, YouTube will continue to enable free expression on its platform, particularly as it relates to issues subject to political debate.” The company affirmed that it has never run a “fact-checking program,” one way in which biased advice prompted Twitter and Facebook to shut down speech during the censorship era. It pledged never to use fact-checkers. So what should we make of this sudden confession? First, it sometimes pays to be paranoid. The many conservatives who complained about vanishing content were not crazy. Second, credit Chairman Jordan for pressuring Alphabet to admit its censorship and to speak openly about behind-the-scenes pressure from government. Third, we are not out of the woods yet. The danger of government pressure leading to censorship is greater than ever. It comes now not from “jawboning” officials in Washington, D.C., but from actors in Brussels and the European Union. Alphabet wrote that the EU’s Digital Services Act “could be interpreted in such a way as to require Alphabet and other providers of intermediary services to remove lawful content, jeopardizing the companies’ ability to develop and enforce global policies that support rights to free expression and access to information.” That’s the next battleground, and it is one in which liberals and conservatives should join forces to defend American speech from foreign censorship.  In the latest demonstration of the Streisand Effect, Jimmy Kimmel came roaring back to television screens after efforts by Federal Communications Commission Chairman Brendan Carr (“we can do this the easy way or the hard way”) to shut him up. Kimmel’s opening monologue has been played and replayed countless times. Even if you’ve seen it, even if you don’t particularly like Kimmel or his show, his words deserve to be revisited in print. Kimmel said: “I don’t want to make this about me, because – and I know this is what people say when they make things about them, but I really don’t – this show, this show is not important. “What is important is that we get to live in a country that allows us to have a show like this. I’ve had the opportunity to meet and spend time with comedians and talk show hosts from countries like Russia, countries in the Middle East who tell me they would get thrown in prison for making fun of those in power. And worse than being thrown in prison. They know how lucky we are here. Our freedom to speak is what they admire most about this country.”  Erika Kirk. PHOTO CREDIT: Gage Skidmore Erika Kirk spoke of how her husband, Charlie Kirk, was assassinated while appearing on campus to hold a dialogue with college students who disagreed with him. Some admirers of Charlie Kirk have supported the censorship of people who criticized her late husband. Erika Kirk chose to speak up for free speech. Referring to Kirk’s legacy in his Turning Point USA organization, she said: “And we will continue to hold debates and dialogue. The First Amendment of our Constitution is the most human amendment. We are naturally talking beings, naturally believing beings. And the First Amendment protects our rights to do both. No assassin will ever stop us for standing up to defend those rights ever. “Because when you stop the conversation, when you stop the dialogue, this is what happens. When we lose the ability and the willingness to communicate, we get violence." Sen. Ted Cruz – FCC Chairman’s Remarks “Dangerous As Hell”  We recently praised Federal Communications Commission Chairman Brendan Carr for a spirited defense of free speech. Regarding so-called “hate speech,” Carr made it clear that there is no such category of speech that can be censored under American law. What a difference a few days make. Chairman Carr this week threatened to effectuate the removal of late-night host Jimmy Kimmel from the air. Carr told a podcaster, “We can do this the easy way or the hard way.”
We do not find Kimmel particularly amusing, and certainly not someone we would stay up late to watch. Sen. Cruz also made it clear he didn’t appreciate Kimmel and hated many things he said. Sen. Cruz understands that Kimmel’s First Amendment rights are our rights. The Shoe Is Now on the Other Ideological Foot For years, Protect The 1st has complained about the left’s cancel culture. The FBI detailed 80 agents to privately order social media companies to remove content, almost all of it conservative content. We wrote about the State Department’s Global Engagement Center, which funded a London-based NGO that privately advised corporate advertisers to avoid such dangerous publications as Reason magazine. We denounced left-wing mobs on campus that exercised the heckler’s veto and threatened speakers with violence. We called out this heavy-handed “jawboning” as nothing but coercion from a government with immense regulatory authority. Conservatives Standing Up for the First Amendment Do conservatives now really want to institutionalize these practices by using the power of the Federal Communications Commission to approve media mergers as a way to regulate speech? Many Republicans and conservatives are demonstrating that the better angels of our nature are still perched on many shoulders.
Many more Republicans we speak to on Capitol Hill are also disturbed by this trend at the FCC, both for what it does to our constitutional liberties, and how it may be used against them by a future administration. A High-Profile Liberal Speaks Out for “American Moxie” Rep. Ro Khanna (D-CA), a liberal’s liberal from a blue state, showed similar courage when he spoke out against social media’s blocking of The New York Post’s coverage of the Hunter Biden laptop story. He writes in The Wall Street Journal that President Trump and Vice President Vance should “change direction.” In particular, he called on the latter to live up to the promise of his speech before the Munich Security Conference, in which he accurately criticized Germany, the UK, and other countries in the EU for using heavy-handed tactics to silence speakers. Rep. Khanna writes: “A government that feels comfortable bullying the private sphere – whether businesses, hospitals, universities, employers or individuals – strips away our audacity as Americans to speak our minds and call out those in power. If we lose that we lose our American moxie.” Here’s to hoping that Chairman Carr returns to the free speech convictions that were such a hallmark of his prior work.  U.S. Senator Ted Cruz speaking with attendees at the 2019 Teen Student Action Summit hosted by Turning Point USA at the Marriott Marquis in Washington, D.C. PHOTO CREDIT: Gage Skidmore “The crownless again shall be king” wrote Bilbo Baggins in a poem in J.R.R. Tolkien’s Fellowship of the Ring. In America, the conservative party – once crownless – now controls the White House, the Senate, and the House. When it comes to protecting our First Amendment rights, are Republicans going to use their power wisely? Sen. Ted Cruz of Texas has often exposed and criticized the previous Biden administration and its allies for censoring conservatives on social media and using coercive techniques to silence and “cancel” conservative speakers in academia, media, and corporations. The power to use the law and agencies to punish political opponents and critics for speech is for many an intoxicating temptation. If only those stupid people would just shut up! Cruz, a fan of Tolkien’s Lord of the Rings series, in a recent podcast interview compared the desire to misuse regulatory authority to silence critics to the almost unbearable temptation exerted by the magical ring of power that could corrupt even the most virtuous. We saw this on full display in the Biden administration, which assigned government agents to secretly censor social media. Now Cruz is applying this literary trope to Federal Communications Commission Chairman Brendan Carr, who publicly threatened to punish the corporate sponsors of Jimmy Kimmel Live! As we all know, it worked. Kimmel is canceled. Sen. Cruz said: “So the Federal Communications Commission is in charge of granting broadcast licenses. So ABC, NBC, CBS, they have licenses from the FCC. It is true that under statute, they are required to be in the public interest. What he [Carr] is saying is Jimmy Kimmel was lying [about the background of Charlie Kirk’s killer]. That’s true. He was lying. And his lying to the American people is not in the public interest. And so he [Carr] threatens explicitly, we’re going to cancel ABC’s license. We’re going to take him off the air so ABC cannot broadcast anymore. “It’s so attractive,” Sen. Cruz said of censorship. “It’s sort of like conservatives saying, wait, wait, if we have government, we have power. We can ban the media.” Sen. Cruz made it clear he found this offensive to the American ideal of free speech. He also offered a practical “live-by-the-sword, die-by-the-sword” reason for this administration and conservatives to abandon this path. “Going down this road, there will come a time when a Democrat wins again, wins the White House … They will silence us.” An arms race is developing between the two parties, established under President Biden and now racing further ahead under President Trump. Unless sides agree to mutual disarmament, censorship of partisan opponents will become a permanent feature of American political life. Will the Supreme Court Reject Alex Jones as the All-Time Poster Child for “Actual Malice”?9/19/2025
“Every man has a right to utter what he thinks truth, and every other man has a right to knock him down for it.” - Samuel Johnson  Alex Jones speaking with attendees at The People's Convention at Huntington Place in Detroit, Michigan. PHOTO CREDIT: Gage Skidmore Alex Jones, founder of InfoWars, is asking the U.S. Supreme Court to review a defamation judgment ordering him to pay nearly $1.5 billion to an FBI agent and parents of children murdered in the Sandy Hook school massacre that took 26 lives. Jones notoriously claimed the 2012 tragedy in Connecticut was a deep-state “hoax” and that the grieving parents of 20 slain children were “crisis actors” hired to promote gun control. Once on the stand, he admitted that the massacre was “100 percent” real, but now argues that his appeal should succeed on First Amendment grounds, with references to a landmark First Amendment case. Does Jones Have a Leg to Stand On? In New York Times v. Sullivan (1964), the Court raised the bar for public figures to win libel suits, requiring proof of “actual malice” – reckless disregard for the truth or knowingly making false statements. The decision gave critics of the powerful “breathing space” to report without undue fear of crushing lawsuits. Jones’ lawyers invoke Sullivan, but their argument rests on the claim that a Connecticut court’s default judgment makes the precedent irrelevant. That claim is undercut by Jones’ refusal to participate in his trial, including ignoring discovery orders. Worse for Jones, the odds against him are steep. The Supreme Court hears fewer than 100 cases of 6,000 to 7,000 petitions it receives each year. Viewed through the lens of Sullivan, Jones’ defamation was about as serious as it gets. As a result of Jones’ attacks, Sandy Hook survivors testified that they suffered from threats of death and rape, along with the added trauma of being branded impostors before an audience of millions. How Might the Court Consider this Petition? A Supreme Court clerk weighing this petition would likely check every Sullivan box:
The First Amendment, bolstered by Sullivan, likely still leaves Jones without sufficient “breathing space” to protect his outrageous claims. “Speech is free,” a plaintiff’s lawyer in the case once told a jury, “but lies you have to pay for.” We have sometimes criticized how courts have subsequently gone beyond Sullivan to the point of making it almost impossible for public figures to win a defamation case. The Jones case, however, may mark the bottom line. His snarling visage could then become the enduring image of what “actual malice” truly means. For a deeper dive on Sullivan’s history and legacy, check out this piece by Columbia’s Knight First Amendment Institute.  What does the U.S. Supreme Court have to do to make the law clear to the states? Several states seem determined to get around the 6-3 ruling of the Court in 303 Creative LLC v. Elenis. In that 2023 opinion, the Court upheld the First Amendment right of a digital designer not to be compelled to write, design, and create websites that conflicted with her religious beliefs opposing same-sex marriage. Even if you disagree with those conservative religious beliefs, you still have a stake in the right of people not to be forced to violate their religious beliefs in businesses that rely on expressive activities. Justice Neil Gorsuch wrote that under the logic of a Colorado state board, which pressed the case against 303 Creative, the government could be allowed “to force all manner of artists, speechwriters, and others whose services involve speech to speak what they do not believe on pain of penalty.” He added that under the same logic, Colorado “could require an unwilling Muslim movie director to make a film with a Zionist message, or an atheist muralist to accept a commission celebrating Evangelical zeal … Equally, the government could force a male website designer married to another man to design websites for an organization that advocates against same-sex marriage.” The Court followed the logic of its Masterpiece Cakeshop decision in 2018, which found that a baker who crafts wedding cakes with special messages was engaged in expressive activity. This made his profession one in which religious scruples must be protected by the First Amendment. Now California is prosecuting another baker, Cathy Miller, owner of Tastries Bakery in Bakersfield for refusing to make a cake for a same-sex couple. In the Becket Fund video below, there is no doubt that Miller sees her work as artistry that supports her Christian beliefs. Before starting a wedding cake, Miller meets with every bride and groom to get the message right. “What is the intent of the cake?” she asks. “How can I bless somebody with this?” When a same-sex couple asked her to make a cake, Miller said that she “prayed for the right words” on how to communicate with the prospective customers. She told them that she is the only baker in Bakersfield with this restriction and offered a referral. Legal action by the state soon followed, along with coarse threats and vandalism from anonymous attackers. The Court has made it clear that the principle protecting expressive services is narrow and limited. A restaurateur or hotel owner who tried to deny service to LGBTQ customers would be hit with a civil rights violation – and rightly so. There is, perhaps, a larger culture takeaway in this case for people on all sides of the religious and cultural divide. Given that almost every baker would jump at the chance to take the order that Miller took a pass on, could we just agree to live and let live? Does everything have to be litigated to the ultimate degree? Or the next time, might two customers actually follow up on Miller’s referral to a “really good decorator” who is more than happy to make their cake?  The decline of civic education in America is reflected in the inability of most Americans today to name the five protections of the First Amendment. Worse, one in three college students believes violence is sometimes justified against certain speakers. In the turbulent wake of the assassination of Charlie Kirk, two basic First Amendment misunderstandings keep surfacing.
What Can the Government Do About Speech? Brendan Carr, Chairman of the Federal Communications Commission, got it right at Politico’s AI & Tech Summit when asked if government should crack down on ugly social media posts about Kirk’s murder. Chairman Carr said: “I think you can draw a pretty clear line, and the Supreme Court has done this for decades, that our First Amendment, our free speech tradition, protects almost all speech.” He noted that only “a relatively small category of speech” – such as direct advocacy of violence – has “existing laws on the books that deal with that.” Attorney General Pam Bondi was less discerning. She faced a brutal takedown by Charles C.W. Cooke in National Review for comments she made this week. Cooke noted that Bondi promised: “We will absolutely target you, go after you, if you are targeting someone with hate speech.” Cooke wrote: “Actually, she won’t. She won’t ‘target’ or ‘go after’ anyone for ‘hate speech’ because, legally, there is no such thing as ‘hate speech’ in the United States, and because, as a government employee, she is bound by the First Amendment. And if she tries it anyway? The Supreme Court will side against her 9-0.” Cooke notes that there are categories of speech such as incitement, libel, and threats that can be sanctioned. Otherwise, he wrote, “speech is speech.” “But speech that is supposedly ‘hateful’ – including about Charlie Kirk’s murder – is undoubtedly protected by the Constitution. Kirk himself was clear about this.” Can Businesses Refuse to Promote Your Views? Attorney General Bondi also suggested prosecuting businesses that refuse to print posters for Kirk vigils. That’s a fundamental misreading of the First Amendment. Businesses can legally refuse any customer, as long as it is not on the basis of a protected category, such as race, gender, or national origin. To propose otherwise is to fail to understand the First Amendment as a neutral principle. Think about it: If you want to defend a Christian web designer who is being prosecuted in a blue state for declining to celebrate same-sex marriage as a matter of religious conviction, you cannot then turn around and prosecute vendors for declining to print a poster with a political subtext. What Does the Law Say About Firing People for Their Posts? Bondi told Sean Hannity on Monday, that employers “have an obligation to get rid of people. You need to look at people saying horrible things.” Private employers have no such obligation to the government. And while many states protect the speech and political views of private employees by statute, the rules regarding private-sector employment and private speech in states without such protections typically favor the employer. A number of employees of private companies and even public school teachers have been fired for insensitive comments in recent days. And most of these firings will likely stick.
The Bottom Line on Free Speech We know that a lot of ugly and insensitive things have been said and posted in the wake of the Kirk assassination. But trying to regulate speech is not only unconstitutional, it is also self-defeating. If we actually broke the First Amendment, forbidden speech wouldn’t disappear. It would pool under the national skin, fester, and become something much worse. As always, sunlight remains the best disinfectant.  In the last few years, we’ve documented the abuse of government power to shut down conservative speech. Does that now make it okay to use government power to shut down progressive speech, especially if it’s way out of line? Here’s a little history: the State Department under the Biden administration used its now-shuttered division, the Global Engagement Center, to fund efforts through a London-based NGO to persuade advertisers to boycott conservative- and libertarian-leaning news outlets. We’ve reported on the Twitter files and from Meta-Facebook CEO Mark Zuckerberg about threats from the White House to shut down conservative speakers. The rationale for censorship was that conservative journalism, posts, and rhetoric were “disinformation” that was too “dangerous” to society to be permitted. Now, in the aftermath of Charlie Kirk’s murder, some progressive voices are testing the patience of conservative critics of online censorship. Some posts about Kirk from progressives have been healing and compassionate, but some have been insensitive, cruel, and even gloating. In reaction, Rep. Clay Higgins (R-LA), who sits on the Committee on Homeland Security and the Committee on Oversight and Accountability, posted this: “I am going to use Congressional authority and every influence with big tech platforms to mandate immediate ban for life of every post or commenter that belittled the assassination of Charlie Kirk. If they ran their mouth with their smartass hatred celebrating the heinous murder of that beautiful young man who dedicated his whole life to delivering respectful conservative truth into the hearts of liberal enclave universities, armed only with a Bible and a microphone and a Constitution … those profiles must come down. “So, I’m going to lean forward on this fight, demanding that big tech have zero tolerance for violent political hate content, the user to be banned from ALL PLATFORMS FOREVER. I’m also going after their business licenses and permitting, their businesses will be blacklisted aggressively, they should be kicked from every school, and their drivers licenses should be revoked. I’m basically going to cancel with extreme prejudice these evil, sick animals who celebrated Charlie Kirk’s assassination. I’m starting that today. That is all.” Virtually everything Rep. Higgins said to characterize these speakers – running their mouths with “smartass hatred” – could be leveled at some conservative speech. Of course, actual endorsements of Charlie Kirk’s murder shouldn’t be posted by any company. Beyond that, once we start down the path of banning insensitive speakers “from all platforms forever,” pulling their business licenses and permits, “blacklisting” their businesses, we will have created a Leviathan government censorship machine that can be used against anyone at any time, including Rep. Higgins himself the next time a progressive administration is in power. It is hard to accept, but the landscape of free speech is bound to include smartasses, jerks, smirkers, and ghouls who run their mouths. Narrow the horizons and all speech will ultimately be in danger. Besides, letting the jerks be jerks allows them to reveal their real selves to the public. Rep. Higgins correctly notes that the late Charlie Kirk went into what can often appropriately be called “liberal enclave universities” armed with nothing but a Bible, a microphone, and – we would add – a smile. Whether you nodded in agreement or seethed in objection to what Charlie Kirk said, he had the courage to say it with good humor and to respectfully listen to those who disagreed with him. That’s the spirit America needs now, from people on all sides.  When President Trump issued an executive order directing the attorney general to prosecute those who burn American flags, it struck many as a snub of the U.S. Supreme Court. Did the president’s order fly in the face of a 1989 Supreme Court opinion, Texas v. Johnson, holding that flag-burning is protected by the First Amendment? “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents,” wrote Justice William Brennan for the 5-4 majority in that case. Even Justice Antonin Scalia, known for conservative social views, gave the majority its decisive swing vote. He later said that if he were king, “I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king.” Justice Scalia put his understanding of the Constitution before his personal preferences. President Trump’s executive order seems to ignore this clear precedent, putting emotion above legal logic. The president wrote that desecrating the flag “is uniquely offensive and provocative.” And it is. The Executive Order and the Boundaries of the Law But the First Amendment does not allow speech to be outlawed simply because it is offensive or provocative. There are other, more complex issues for the courts to consider in this executive order. The president took pains to expand enforcement while purporting to acknowledge the boundaries of the law. Consider two distinctions in the president’s executive order.
This seems an attempt to build on the 2003 Supreme Court ruling in Virginia v. Black, which affirmed the right of Virginia to ban cross burning when it is done with the intent to intimidate. Writing for the majority, Justice Sandra Day O’Connor noted the long history of “whipping, threatening, and murdering” associated with burning crosses. From this history, she concluded:
The Trump executive order attempts to predicate action against flag burners on this principle. But does every instance of flag-burning place specific Americans in fear of bodily harm or death? Is that reasonable, or too much of a stretch? It is one thing to burn a cross on a particular person’s front lawn, quite another to burn a flag as part of a mass protest against the government rather than against individual Americans. Is the Executive Order Content Neutral? Similar principles apply to the directive to use “content-neutral” laws relating to harms unrelated to expression. While content-neutral enforcement of laws against burning things in public places would of course be reasonable, the executive order specifically directs a content and viewpoint-based enforcement against burning American flags. That is hardly content neutral, and the order makes clear that the harm it goes after is exactly based on the expressive content of the act of burning an American flag, not any concern with fire safety. If the executive order does not include enforcement on burning the flags of other countries, it is by definition not content neutral. Courts will have to decide whether a viewpoint-based directive to selectively enforce otherwise permissible laws can end-run existing precedent on flag burning. This being America, within hours of the executive order’s release, a man torched an American flag across the street from the White House. He was arrested, but not for burning the flag. He was arrested for starting a fire in Lafayette Park. That seems reasonable to us. Starting fires is illegal in most public places, and is not exactly the safest activity. Would the police plan to be equally diligent against flammable conduct the president likes – perhaps a pardoned January 6th protester burning a picture of the J6 Committee in effigy? There may be specific instances in which flag burning poses a threat of imminent violence. Attaching such a threat to all flag burning could, however, be just a means of punishing the expression by imposing the costs of arrest and defense, regardless of the merits of the charge. In the meantime, we point to the words of Justice Anthony Kennedy, who wrote in a 2003 concurring opinion: “It is poignant but fundamental that the flag protects those who hold it in contempt.”  Charlie Kirk speaking with attendees at the 2018 Student Action Summit hosted by Turning Point USA at the Palm Beach County Convention Center in West Palm Beach, Florida. PHOTO CREDIT: Gage Skidmore The murder of conservative activist Charlie Kirk is a bullet fired at all of us. That bullet was also fired at a father, husband, and a nice man who made himself approachable to all. You might have nodded in agreement with Kirk’s podcasts, you might have dismissed him as too provocative, or you might have (as we did) agreed with much of what he said but shrink from some of his statements. But one thing everyone should have noticed about Charlie Kirk was his willingness to engage with people – students especially – who vehemently disagreed with him. We’ve seen clip after clip of Charlie Kirk patiently listening to invective, only to respond with thoughtful responses and questions that promote dialogue. If you doubt this, check out Kirk’s response to an NSFW South Park parody of him. “We need to have a good spirit about being made fun of,” Kirk said, smiling after replaying South Park’s roast of him. In this heated moment, we need to reaffirm that every American has a right to speak, whether it is temperate or intemperate, good or bad, fair or unfair speech. You have the right to be angry about what other people say, but you don’t have the right to hurt them. (Note to anyone itching to pick up a gun – violence is a surefire way to hurt whatever cause you’re espousing.) Violence in retribution for speech is un-American. We are deeply disturbed and concerned about what happened on Wednesday in Utah, not only for the sake of Charlie Kirk and his family, but also because when someone is shot for political reasons, we all take a bullet.  President Trump announced on Monday that he is directing the Department of Education to formulate guidelines to protect prayer in public schools. Is this the first step in imposing religion on Americans through public institutions, or a necessary act to defend the First Amendment rights of the religious? The president could not have picked a more colorful stage for this announcement – inside the Museum of the Bible in Washington, D.C. – or a more attentive audience, the Religious Liberty Commission that he himself created. “The Department of Education will soon issue new guidance protecting the right to prayer in our public schools, and it's total protection,” the president said. Cue the critics who echo Robert Reich, former Secretary of Labor and leading progressive voice, who wrote: “A society where one set of religious views is imposed on those who disagree with them is not a democracy. It’s a theocracy.” Is this fair? Of course, no executive order or law would override the Constitution’s establishment clause to allow, say, a teacher to begin each class with the Lord’s Prayer. But what about a teacher saying grace before lunch, or wearing a crucifix or Star of David? Or students who choose to privately pray? We note two aspects of Monday’s event. First, President Trump did not say he was “establishing” prayer in public school classrooms. He said he was going to “protect” prayer in schools. To illustrate what he meant, President Trump pointed to Hannah Allen, who in 2018 was an eighth-grader at Honey Grove Elementary School in Texas. Hannah had organized a group of students to hold hands around an empty table at lunchtime to pray for the healing of a fellow student who had been injured in an accident. The school’s principal broke up the prayer session. The next day, he told Hannah that students who wanted to pray should go behind the curtain of the cafeteria’s stage, outside the school, or to the gym. A tart letter from First Liberty Institute lawyers to the school district said these statements constituted an official message that prayer “is illegitimate, disfavored and should not occur in public.” The letter asserted that the principal showed hostility by “quarantining” prayer as if it were “an infectious disease.” The school district quickly backed down. During the session of the Religious Liberty Commission, commissioners heard from several other former students with harrowing tales of what can only be described as religious persecution. One of them was Maggie DeJong, who filed a lawsuit against Southern Illinois University Edwardsville, alleging violations of her First Amendment rights. She had been ordered by university administrators to refrain from having “any contact,” or even “indirect communication” with three fellow graduate students who complained about her posts about religion and her respectful critique of Critical Race Studies theory in class. Maggie told the commissioners that the administration had sent out emails to faculty and students denouncing her for “oppressive” comments that created “a toxic learning environment.” She expressed her dismay to the commissioners that a university, “which should be a marketplace of ideas,” would so forcefully shut her up. “I wish we could have shared our views,” she told the commissioners. The Commission also heard from a young woman who attempted to establish a Students for Life organization at Queens College, part of the City University of New York. That application was denied, forcing the members of this would-be student organization to fund, through the university’s mandatory student activity fees of $1,200 (per student over eight semesters) for groups that support abortion. Whatever your views on this contentious issue, surely banning one viewpoint and subsidizing its opposite is unconstitutional. After being sued in federal court, Queens College agreed to recognize the organization and revise its policies to prevent discrimination on the basis of belief. The Commission also heard from an evangelical student at Georgia Gwinnett College, one that went all the way to the U.S. Supreme Court. When Chike Uzuegbunam attempted to share his enthusiasm about his recent conversion experience with fellow students at an outdoor plaza, campus police showed up to crack down on this act of “disturbing the peace.” He was later offered the chance to voice his views from a designated “speech zone” that constituted 0.0015 percent of the campus, open only 10 percent of the time – as if the whole school shouldn’t be a free speech zone. A lower court ruled that because Uzuegbunam had claimed no monetary losses (beyond $1), and that the college had changed the policy, his case was moot. The U.S. Supreme Court begged to differ. It heard the case and overturned the lower-court’s ruling. In an 8-1 decision, the Court reversed the lower court, citing precedent from British common law: “Because ‘every violation of a right imports damage,’ nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.” Uzuegbunam told the Commission that without this recognition of his religious rights, the “Constitution is an empty promise.” He also noted that in his case before the Supreme Court, he was elated to be supported by statements not just from fellow Christians, but also from Jews, Muslims, and atheists. What came to the fore in this hearing was that despite reversals in court, there is a lack of understanding among educators that expressions of faith on campus – as long as they don’t interfere with instruction – enjoy First Amendment protection. It shouldn’t take a presidential initiative to make this clear. Supreme Court to Decide If Protections for Prisoners’ Religious Liberty Is a “Parchment Promise”9/8/2025
Landor v. Louisiana Department of Corrections  There is much more to Rastafari than reggae music and the ritual inhalation of ganja. This belief system is, in fact, recognized as an Abrahamic religion, with roughly one million adherents around the world, dedicated to its interpretation of the Bible and devotion to Jah, the Rasta designation for God. Damon Landor, a devout Rastafarian, had grown dreadlocks over nearly two decades in devotion to his faith. Sentenced to prison for a drug-related conviction, Damon was allowed to keep his dreadlocks in keeping with court interpretations of the Religious Land Use and Institutionalized Persons Act (RLUIPA). With only three weeks left before his release, Damon was transferred to Raymond Laborde Correctional Center in Louisiana. At intake, he explained his beliefs, presented proof of past accommodations, and handed a guard a copy of the Fifth Circuit decision protecting Rastafarian inmates. The guard threw it in the trash. When Damon offered to contact his lawyer to prove his dedication to his religion, guards forcibly handcuffed him to a chair and shaved his head bald. What began as an ugly dispute is now a landmark religious-liberty case. The U.S. Supreme Court has agreed to review Landor v. Louisiana Department of Corrections. Though lower courts condemned the conduct, they denied Landor the ability to seek monetary damages under RLUIPA, finding that the statute bars such relief against individual officials. In a powerful amicus brief, the Becket Fund for Religious Liberty argues that allowing damages under RLUIPA is essential – not merely appropriate – for holding prison officials accountable and safeguarding religious liberties. The brief warns that without such a remedy, courts effectively bless “mootness gamesmanship” – the practice of officials evading accountability by transferring or releasing inmates before injunctive relief can take effect. “Without money damages, prison officials can engage in strategic gamesmanship to moot meritorious cases,” Becket told the Court. Becket warns that RLUIPA would otherwise be a "parchment promise." The brief also highlights that fears of burdening officials are overblown. Existing safeguards, including qualified immunity, the Prison Litigation Reform Act’s exhaustion and filing requirements, and screening for frivolous suits, ensure that only culpable officials face liability. If the Supreme Court holds that RLUIPA doesn’t authorize damages, countless prisoners – particularly those who are transferred or released before adjudication – could never receive redress for profound religious violations. This is why dozens of Jewish, Christian, and Muslim organizations have filed amicus briefs in this case, understanding that respect for the religious rights of some involve the religious rights of all. Protect The 1st will closely follow oral argument before the Court on November 10. In the meantime, keep in mind the words of the late, great Bob Marley: “You never know how strong you are until being strong is your only choice.”  Two events cast long shadows over the House Judiciary Committee’s hearing on Wednesday concerning the threat of European censorship to American speech and innovation. One was the arrest this week of comedy writer Graham Linehan by five armed police officers at London’s Heathrow Airport. If anyone should doubt that the speech laws of the UK’s Online Safety Act, as well as the Digital Services Act of the European Union, were meant to be global, it had to be the arrest of this Irish citizen who had posted his offending tweets from Arizona. The other shadow was cast by the looming midterm elections, with Democratic Members firing shots not at Europe but at the White House. Ranking Member Rep. Jamie Raskin (D-MD) launched a spirited attack on President Trump for his treatment of the First Amendment, including the use of regulatory authority to coerce a $16 million settlement from Paramount over a nuisance lawsuit about CBS’s editorial decisions. Chairman Jim Jordan (R-OH) archly noted that while Rep. Raskin spoke, an aide stood behind him with a large poster full of headlines “from countless articles criticizing Donald Trump” – underscoring, that whatever one thinks of the controversies of the Trump administration, free speech in America remains robust. The star of the show was Nigel Farage, MP and the leader of the UK Reform Party in Parliament. His remarks were well set up by Chairman Jordan who noted that when European Commission member Thierry Breton had fired off a letter in 2024 to Elon Musk complaining about X’s posting of an interview with Donald Trump, he threatened “full use of our toolbox.” This toolbox under the EU’s Digital Services Act includes fines that can reach 10 to 20 percent of global revenues. Enough of those could amount to a potential death-penalty fine for even the largest social media companies. Breton, Rep. Jordan said, “threatened an American running an American company regarding our most important election.” Farage seamlessly picked up on Jordan’s characterization, telling the committee that he came bearing bad news from the “land of the Magna Carta and the Mother of Parliaments.” He had come to the United States, he said, “to be a klaxon” warning of the impending threats from the UK and EU to free speech in America. In his formal testimony, Farage told the committee that the British regulator Ofcom “purports to have the authority to demand that American citizens who operate web platforms provide Ofcom with incriminating information about themselves and their services. Failure to respond to these demands, or any evasion in a response to these demands, is a criminal offense in the United Kingdom, punishable by arrest, fines, and a term of imprisonment of up to two years’ duration.” This threat is far from merely rhetorical, as the arrest of Linehan underscores. “Ofcom has already threatened four American companies with exactly these penalties,” Farage told the committee. “I repeat: regulatory bodies in the United Kingdom are actively threatening to imprison American citizens for exercising their protected Constitutional rights.” There were some notes of bipartisanship. Rep. Zoe Lofgren (D-CA), whose district includes Silicon Valley, said that she has long been “critical of the approach of the EU” on internet regulation. Chairman Jordan defended American technology companies as an “engine of innovation in our global economy.” He noted that European regulation has not resulted in the rise of any competitive European champion. “China wins as Europe hurts both itself and America,” Chairman Jordan said. Overall, the hearing was noisy, contentious, and spirited – in all, exactly what one would hope for in a discussion about free speech.  PHOTO CREDIT: Gregor Fischer I re:publica 2013 Graham Linehan is an Irish sitcom producer and writer who lives in the UK. He also wrote a series of harsh tweets criticizing “trans activists” on X. “I am furious about what is happening to women in the UK and I despise trans activists because I think they are homophobic and misogynist,” Linehan wrote. He also posted this: “If a trans-identified male is in a female-only space, he is committing a violent, abusive act. Make a scene, call the cops and, if all else fails, punch him in the balls.” How to characterize these tweets? Reactions range from “bigoted,” to “obscene,” to “kind of agree but over the top,” to “about time someone said that.” Left alone, Linehan’s posts would have floated past us down tweet river into oblivion. But the ever-vigilant UK government, oblivious to the Streisand Effect, enlarged these tweets to the size of the Hollywood Sign and pumped them full of bright, blazing neon. Now the whole online world has read them. This happened after Linehan returned from Arizona to London, only to be greeted at the airport like a suspect in a terrorist investigation. “The moment I stepped off the plane at Heathrow, five armed police officers were waiting,” he wrote. “Not one, not two, five. They escorted me to a private area and told me I was under arrest for three tweets … I was arrested like a terrorist, locked in a cell like a criminal, taken to hospital because the stress nearly killed me and banned from speaking online – all because I made jokes that upset some psychotic crossdressers.” Offended? Many will be. But even if you judge the remarks to be radical, intemperate, or narrow-minded, it is still just speech. In our country, a comedian saying “punch him in the balls” would surely fall far short of the judicial doctrine of a “true threat” that would be actionable. Actual true threats by extremists preceded the July 7, 2005, terrorist bombings that killed 52 people and injured 800 in London. Confusing that with “punch him in the balls” degrades the meaning of actual violence. Many Britons outside of Prime Minister Keir Starmer’s Labour government are as alarmed as most Americans. “Sending five officers to arrest a man for a tweet isn’t policing, it’s politics,” said Tory leader Kemi Badenoch. “It’s time this government told the police their job is to protect the public, not monitor social media for hurty words.” Nigel Farage, leader of the Reform party, said, “The Graham Linehan case is yet another example of the war on freedom in the UK … Free speech is under assault, and I am urging the USA to be vigilant.” Should we be vigilant? Warning Americans about the importation of these speech standards may, in the era of Trump at least, sound alarmist – “couldn’t happen here,” etc. But keep in mind that social media posts are global. The UK’s Online Safety Act, as with the European Union’s Digital Services Act, under which people can be officially investigated, arrested, and prosecuted, for merely insulting politicians, can also be used to deplatform Americans on U.S.-based social media under the laws’ broad definitions of “harmful” speech. It's almost enough to make you want to punch someone in the cojones.  Seth Dillon speaking with attendees at the 2021 Student Action Summit hosted by Turning Point USA at the Tampa Convention Center in Tampa, Florida. PHOTO CREDIT: Gage Skidmore Call it Euro-creep – the tendency of Europe’s draconian censorship laws to seep into American law. Germany is prosecuting digital speakers for “public insults against politicians.” Not to be outdone, California passed two laws that punish speakers for posting satirical memes and parodies of politicians, while requiring large online platforms to act as the government’s censors and remove political humor from their sites. On Friday, the satirical site, Babylon Bee, and video-sharing platform Rumble, prevailed in a lawsuit before a federal district court. The court swept the two California laws into the dustbin of unconstitutional attempts to control speech. Lowbrow Humor Gets Equal Protection The California laws targeted the use of digital technology and AI to create “materially deceptive” content. Think of concocted images of President Donald Trump standing next to a giant cannon on the White House lawn to fire deportees into the air, or Gov. Gavin Newsom deploying a giant can of Febreze over San Francisco to mask the city’s “poo smell.” As Judge John Mendez of the U.S. District Court for the Eastern District of California wrote, “Novel mediums of speech and even lowbrow humor have equal entitlement to First Amendment protection and the principles undergirding the freedom of expression do not waver when technological changes occur.” Targeting Some Speakers, Protecting Others Concluding that California’s approach “suffers from a ‘compendium of traditional First Amendment infirmities,’” the court found that the laws discriminated on the basis of “content, viewpoint, and speaker.” One of the laws only punished content that could “harm” a candidate’s electoral prospects. But “materially deceptive content that helps a candidate or promotes confidence would not be subject to penalty.” Broadcasters and some internet websites are covered by more lenient rules, exempt from general or special damages. But no such leniency is afforded parodists. Deputizing “Censorship Czars” Worst of all, California sought to deputize legions of internet users as plaintiffs, allowing them to seek general and special damages, including attorneys’ fees and cost, even from those who merely repost the offending image. The court rightly concluded that “this attempts to stifle speech before it occurs or actually harms anyone as long as it is ‘reasonably likely’ to do so and it allows almost anyone to act as a ‘censorship czar.’” Imagine the flood of lawsuits that would have drowned nearly all satirical speech if this litigation factory had been allowed to continue. The Solution to Bad Speech Is… the Envelope Please… More Speech! Judge Mendez acknowledged the problem of digital technology spreading deceptive stories and deepfakes misleading people. But burying the First Amendment’s guarantee of free speech under a heap of lawsuits is not the answer. “When it comes to political expression,” Judge Mendez wrote, “the antidote is not prematurely stifling content creation and singling out specific speakers but encouraging counter speech, rigorous fact-checking, and the uninhibited flow of democratic discourse.” The mere fact that the California legislature and Gov. Newsom saw nothing amiss with these laws should serve as a wake-up call that the First Amendment is poorly understood and respected, even by elected officials. “It is alarming to think that government officials could decide which political speech is permitted, silenced, or erased altogether,” said Rumble CEO Chris Pavlovski. We agree. Vigilance is called for, especially considering that Babylon Bee still has to defend itself against similar laws in Hawaii.  We reported in 2023 on Minnesota’s exclusion of Christian colleges and universities from participating in a publicly funded program that allows high school students to earn college credit at the postsecondary institution of their choice. The law explicitly excluded students from post-secondary programs in which the admission process considered “religious beliefs or affiliations.” This law would have barred from the program the University of Northwestern-St. Paul and Crown College, the latter the largest provider in this 40-year-program. Both schools asked students to sign a statement of faith to ensure that they are a good fit for their institutions that – while they teach secular subjects at a high level – have a religious orientation. At the time, Minnesota legislator Harry Niska said this amounted to the “targeting of people of faith.” Now, thanks to a federal court in Minnesota, that targeting is over. The court scrapped the law as unconstitutional, finding that the outlawing of faith statements as admissions requirements was unconstitutional. The court held that under the law, the “free exercise in maintaining a campus-community of like-minded believers is burdened.” Credit for this victory goes to the Becket law firm that backed parent-plaintiffs who brought suit. “Minnesota tried to cut off educational opportunities to thousands of high schoolers simply for their faith,” said Diana Thomson, senior counsel at Becket. “That’s not just unlawful – that’s shameful. This ruling is a win for families who won’t be strong-armed into abandoning their beliefs, and a sharp warning to politicians who target them.”  Earning a graduate degree is one way to stuff knowledge into one’s brain. But the stomach still needs food, the body still needs a place to shower and sleep, and every student needs a little extra cash to go out with friends. This is why for graduate students, working as a teaching assistant is one way to make ends meet while earning a Ph.D. For decades, teaching assistants – better known as “TAs” – have complained about being overworked and underpaid. Many grumble that their professors offload too much of their teaching load and benefit from free research help for their next paper or book. The running joke: TAs just grade papers until they pass out. Understandably, graduate students sought to unionize to set limits on their labor and seek better pay. That is a good thing. But union membership should never come at the cost of freedom of speech. “Campus labor groups once motivated by economic fairness are increasingly governed by ideological litmus tests,” writes Jon Hartley, a doctoral candidate in economics at Stanford University, in The Wall Street Journal. The unions that represent teaching and research assistants in academia are often steeped in far-left ideological agendas that many don’t support and don’t want to endorse support with their dues. This was the case at the University of Chicago, where graduate students are going to court to protect their First Amendment rights against their union, the United Electrical, Radio, and Mine Workers of America. The union’s local, GSU-UE, is a proponent of the “Boycott, Divest, and Sanction” movement against Israel, branding Israel an “apartheid regime” that commits “ethnic cleansing.” The union has joined in the campaign to “fight against campus Zionists,” resist “pigs” (meaning the police), and “liberate” Palestine from the “river to the sea” by “any means necessary.” Jewish students understandably regard their compelled dues as forced subsidies of antisemitism. So they are going to federal court for being compelled to pay a union that, they believe, leans hard against Israel and Jews. Hartley himself is suing for being forced by the Stanford Graduate Workers Union for refusing to sign a membership form and pay dues to that same union that supports progressive causes such as abortion, public subsidies for “gender-affirming care,” and defunding the police. Because the union’s advocacy contravenes his Roman Catholic faith, he is seeking a religious-objector accommodation under Title VII of the Civil Rights Act. Hartley writes: “At both Stanford and Chicago, union leadership insists that such coercion is routine – part of collective bargaining. But there’s a world of difference between negotiating wages and punishing dissenters. When students are told they can’t work, teach or study unless they pay dues to a political organization, it’s no longer about labor rights – it’s about freedom of association, conscience and speech.” On Labor Day, we celebrated the solid advantages unions have brought to all Americans, from the five-day work week to the eight-hour workday. Even if you buy the idea that Americans should be forced into union membership (and some of us don’t), no one should be forced to support speech they find objectionable. This is especially true in academia, where the freedom to study, teach, and research is held to be sacrosanct.  At the Rose Bowl in Pasadena, California, we saw safety barriers stamped with the words, “Free Speech Zone.” Presumably, these portable safety barriers are used to cordon off protesters into designated areas. While we understand the need for “time, manner, and place” restrictions on protests, the signage on these barriers is an abomination and a travesty. It amounts to an advertisement for ignorance. There are no “free speech zones” in America. Thanks to the First Amendment, the nation itself is one giant free speech zone. Why is free speech so important? Why did the Founders make sure to put it at the very beginning of the Bill of Rights? How do Americans today benefit from this legacy of the 18th-century Enlightenment? Greg Lukianoff, CEO and president of the Foundation for Individual Rights and Expression (FIRE), explains in a recent TED Talk the benefits that result from the “four truths” of free speech. Some of them run counter to today’s prevailing assumptions – beginning with the realization that, far from creating “safety issues,” free speech actually makes us safer. To find out why, listen to Lukianoff explain how free speech is this safety valve that keeps our society freer, fairer, and ultimately securer. In just 12 minutes, he explains to a 21st-century audience why this 18th-century principle is more essential to America than ever before. Cambridge Christian School v. Florida Athletic Association  Does a Christian prayer on a stadium loudspeaker at the start of a football game amount to a government endorsement of religion, or does it fulfill the First Amendment’s guarantees of free speech and the free exercise of religion? That’s the question that arose when two Christian schools made it to the state championships in Florida in 2015. The state’s high school athletic association, a government entity, barred the teams from conducting a joint prayer over the stadium loudspeaker. Many would reflexively side with the athletic association. The government sets the venue for the event. The government controls the loudspeaker. Allowing any religion to pray over government-controlled equipment might, at first glance, appear to violate the clause of the First Amendment that forbids the official establishment of religion. That was essentially the conclusion the Eleventh Circuit Court of Appeals supported last year. To mix sports metaphors, it may have seemed like a slam dunk. But the Eleventh’s decision was, in fact, a bad call. In a petition asking the Supreme Court to hear the case, Protect The 1st wrote that the “Eleventh Circuit held that the First Amendment was not even implicated – on the dubious theory that the proposed prayer, and by extension anything else that had ever been said by private parties on the loudspeakers, was government speech.” Worse, that “dangerous expansion of the already questionable government-speech doctrine flips the First Amendment on its head.” Protect The 1st is now telling the Supreme Court that this case presents “a clean vehicle to resolve the conflict and confusion” about the difference between the government’s speech and the speech of private actors using public forums. Consider what happened when the city of Boston allowed 284 diverse groups at various times to hoist their flags on a city-owned flagpole, except for one group seeking to fly a standard that included the Latin Cross. In that case, Shurtleff v. City of Boston (2022), Protect The 1st told the Court that when the government provides a public forum for all comers, it is not “government speech.” It is merely a government forum. To single out religious expression for exclusion in a public venue is to abridge freedom of religious expression. Period. Justice Samuel Alito wrote then that “speech by a private individual or group cannot constitute government speech if the government does not attempt to control the message.” The same principle applies, whether with flagpoles or loudspeakers. Protect The 1st told the Court that the state athletic association “would not itself have been speaking had it allowed a student to use the limited public forum it created to pray at the championship football game.” We added that expanding the government-speech doctrine to convert government-sponsored forums into tools for censoring some views – but not others – weakens the First Amendment. Protect The 1st concluded by telling the Court that “a prayer to solemnize the forthcoming competition, thank God, and seek His help in ensuring a good game for players and fans alike offers a religious viewpoint. That viewpoint must be respected and permitted every bit as much as a speech thanking parents, teachers, and the school, or merely cheering, ‘Go team!’” Many long-time Court observers believe the Justices will recognize the threat to free speech and expression in the Eleventh Circuit’s ruling and will, this fall, place this case on their docket.  The historian Robert Paxton notes that governments of all stripes are susceptible to authoritarian trappings, especially when their narratives suggest “obsessive preoccupation with community decline.” This happens when power elites – whether left, center, or right – become convinced of their correctness close ranks to maintain dominance. Before long, they begin acting “in ways quite contrary” to their professed beliefs – a pattern Vice President J.D. Vance condemned in a blistering critique of Europe’s entrenched interests in Munich in February). All this makes a recent post by Jonathan Turley particularly resonant. “Free speech is in a free fall in Europe,” he observes. This dynamic helps explain why Germany’s tendency to censor speech continues to find new targets:
Germany’s current coalition politicians seem intent on furthering, as the examples above demonstrate, crackdowns on speech. Writing in the Wall Street Journal, Filipp Piatov excoriated this censorship: “Germany’s establishment is fighting to reassert control over public discourse – especially online, where it’s losing ground. The main targets are social-media platforms and populist parties. The tools are censorship and criminal law. “This isn’t really about fighting disinformation. It’s about regaining control, which they sense is slipping away.” Alas, Germany is hardly alone in this regard. As we’ve written before – and undoubtedly will again – the European Union’s Digital Services Act threatens to censor the speech of Americans and other foreign citizens, making it the new price of simply doing business. Across the Channel, the increasingly restrictive United Kingdom seems locked in step with the EU. There, the Online Safety Act is poised to wreak havoc on privacy, free speech, and even the safety of the children it purports to protect. Jonathan Turley is rightfully leery of EU Commission President Ursula von der Leyen’s recent declaration of a Pax Europaea. If the current pattern of free speech violations holds, it signifies a larger abandonment of the shared values that helped build robust post-war democracies on both sides of the Atlantic. What the Fifth Circuit’s Block on a University’s Drag Show Ban Tells Us About the First Amendment8/20/2025
 Is a drag show an expressive activity worthy of First Amendment protection? On Monday, the U.S. Fifth Circuit Court of Appeals decided that it is. In a 2-1 ruling, the court blocked West Texas A&M University President Walter Wendler from preventing a student group from sponsoring a drag show at a campus event center. President Wendler put forward multiple arguments defending his ban. The court’s majority opinion, written by Judge Leslie Southwick, dismantles Wendler’s arguments one by one. That opinion, paired with a strong dissent by Judge James Ho, makes an excellent primer on recent developments in First Amendment law. “A Fool’s Drag Race” The drag show was organized by Spectrum WT, a recognized student group, at this public university in Canyon, Texas, just south of Amarillo. Titled A Fool’s Drag Race, the show aimed to raise funds for a suicide prevention initiative among LGBT+ youth. Organizers promised to keep the show at a “PG-13” level. Three Arguments Slapped Down One of Wendler’s objections was that, to qualify for First Amendment protection, an event must present a particular and discernible point of view. Judge Southwick rejected this, citing a 1995 Supreme Court decision that held that “a narrow, succinctly articulable message is not a condition of constitutional protection.” Otherwise, the abstract paintings of Jackson Pollock, the atonality of the modernist composer Arnold Schöenberg, or Lewis Carroll’s whimsical Jabberwocky verse would be unprotected. (Judge Southwick, a George W. Bush appointee, noted archly that the First Amendment even protects “opaque judicial opinions.”) In short, all expressive works are protected by the First Amendment – including, apparently, cross-eyed impersonations of Liza Minnelli singing “Cabaret.” President Wendler also protested that drag shows do not “preserve a single thread of human dignity,” which comes from being “created in the image of God.” He objected that drag shows, like blackface, “stereotype women in cartoon-like extremes for the amusement of others and discriminate against womanhood.” Some agree. Others disagree. Most simply laugh at the campy performances and lip-sync fails. Judge Southwick, however, observed: “Drag shows – with performers dancing and speaking to music on stage in clothing associated with the opposite gender – mark a deliberate and theatrical subversion of gender-based expectations and signify support for those who feel burdened by such expectations.” Wendler also protested that the campus venue, Legacy Hall, “is not open to the general public.” This would place the event squarely under Supreme Court case law dealing with the right of universities to place restrictions on the use of school resources. But Judge Southwick noted that past uses of Legacy Hall include a local church group’s “Community Night of Worship and Prayer,” a congressional candidate’s forum, a local high school’s “Casino Night,” a dance, a local nonprofit’s benefit gala, a livestock show, and a religious retreat center’s dinner. He concluded: “These past uses, or practices, do not support that West Texas A&M University has limited Legacy Hall to ‘public expression of particular kinds or by particular groups.’” Overall, we largely agree with the majority’s ruling under current Supreme Court precedent. While universities may limit some expression to protect their educational mission, “a justification for selective exclusion from a designated public forum must be carefully scrutinized.” But Bad Precedent Remains On the other hand, Judge Ho’s dissent highlights a remaining threat to the First Amendment on campus. He wrote: “But as anyone aware of current campus conditions nationwide can attest, the vision of the university as a First Amendment haven is woefully naïve – at least when it comes to views disfavored in certain circles. “Just ask the Christian Legal Society. Members of the CLS chapter at the Hastings College of Law sought to exercise their First Amendment right to associate with fellow believers who share their Biblical views on marriage and sexuality … But university officials chose to expel CLS – and only CLS – from campus. And the Supreme Court sided with university officials over CLS.” Judge Ho quotes the Supreme Court’s insistence from this 2010 case that the First Amendment must be analyzed differently “in light of the special characteristics of the school environment,” in which “judges lack the on-the-ground expertise and experience of school administrators.” With his trademark bluntness, Judge Ho writes: “This is all bunk, of course.” He blasted the Court’s opinion for its deference to “academic ‘experts’” who “advocate policies that violate our nation’s most cherished principles.” Judge Ho adds: “CLS contradicts all these principles. But only the Supreme Court can overturn its own precedents. So until the Court itself overturns CLS, we’re bound to follow it.” Judge Ho’s logic oddly aligns with the majority opinion. Judge Southwick chips away at precedent, while Judge Ho insists on rigorously applying it – though with the shoe now on the other ideological foot. Both suggest CLS is flawed and that viewpoint discrimination has no place in public universities. One unfortunate result of this opinion – a real drag, if you will – is that this case will not give the Supreme Court a chance to revisit CLS. But given the state of America’s colleges and universities, there should be no shortage of cases to test that precedent. Stanford Daily v. Rubio  Does the First Amendment’s protection of free speech extend to non-citizens? To paraphrase Avril Lavigne’s old hit, it’s complicated. In this era of rising immigration enforcement, the speech rights of legal visitors to the United States have suddenly become an acute issue. The latest test case comes from The Stanford Daily and two unnamed legal resident noncitizens and student journalists who are suing Secretary of State Marco Rubio and Secretary of Homeland Security Kristi Noem for what they see as the chilling effect administration policies are having on their freedom of expression. “As an independent student paper whose mission is to represent the voices of the Stanford community, this fear of the government directly impacts the quality of our work,” the editors declared. Given that a foreign student could be arrested and expelled from this country and have his or her education terminated, that is a real and palpable fear. The Foundation for Individual Rights and Expression (FIRE) is representing the student newspaper of Stanford University (here is the full complaint and this description of the lawsuit and its background). FIRE has also published a full-throated response to critics in defense of this lawsuit. It’s part civics lesson, part philosophical exposition, and well worth reading. Given, however, that this suit is at the intersection of First Amendment rights and laws concerning foreign policy this case is, as we said, complicated. The courts have periodically wrestled with the extent to which constitutional rights apply to non-citizens since the 1880s. Foreign visitors can certainly have their constitutional rights violated, as in the case of Tufts Ph.D. student Rümeysa Öztürk’s right to due process. After this student from Turkey added her name to an opinion-editorial that made moderate criticisms of Israel, Öztürk was arrested by a group of masked federal agents dressed in all black who whisked her off, for a time, to a detention facility in Louisiana. Understandably, the young woman at first thought she was being kidnapped, not arrested. Öztürk was later released by an international outcry (including from 27 Jewish groups, whose amicus brief accused the government of using antisemitism “as pretext for undermining core pillars of American democracy, the rule of law, and the fundamental rights of free speech and academic debate”). Thanks to cases like this, overreach may end up being the Oxford English Dictionary’s Word of the Year for 2025. It’s happened in Öztürk’s case and elsewhere, and FIRE’s lawsuit suggests it may be happening again. Yet FIRE’s Stanford Daily case is less clear cut. It’s complicated in part because the suit isn’t about a specific incident. Instead, the focus is the interpretation of two foreign policy provisions that have been in place for 60 years, since the passage of the Immigration and Nationality Act:
FIRE’s lawsuit seems to be aiming for a declaration of unconstitutionality if the reason for deportation is clearly protected First Amendment speech. And therein lies another complication: Unlike citizens, non-citizens can be deported if their speech is deemed to fall into one of the categories historically unprotected by the First Amendment, such as incitement, true threats and obscenity. Finally, protected categories of speech are simply less robust in reach when it comes to noncitizens:
Columbia’s Knight First Amendment Institute offers an exhaustive analysis of these points. In sum, the law governing potential actions against resident aliens grants the government sweeping power. With such power comes the responsibility to use it with wisdom and restraint.  Does The Washington Post truly mistake correlation for causation? The Post recently offered a heart-rending profile of tearful teachers celebrating bittersweet memories as the John R. Davis Elementary School in Phoenix shut its doors for good. This sad moment was presented as an example of how school closures are “a response to enrollment declines as the state [Arizona] offers unprecedented taxpayer funding for alternatives to public school.” In this recent feature piece, The Post linked the closure of one-third of schools in the Roosevelt Elementary School District in Phoenix, like Davis Elementary, to declining attendance caused by school choice. The piece specifically blamed the participation of students in the state’s school voucher program under its Empowerment Scholarship Accounts (ESAs) for shuttered public schools. Thankfully, Brittany Bernstein of National Review dug into this story and found that of the 8,500 students who have left the district, only 102 went to a private school under the ESA. Where did the other 8,398 flee to? “The rest have enrolled in public schools not operated by Roosevelt,” Bernstein writes. “It’s not hard to figure out why parents are pulling their kids out of Roosevelt schools en masse: Just 10 percent of students in the district scored proficient in math and just 17 percent scored proficient in reading on the 2024 state tests.” As we’ve reported before, far from degrading public schools, school choice improves them. Randomized control trials of voucher programs found moderate evidence of improvement in academic achievement from private school vouchers – a welcome result given America’s persistently mediocre place in international school rankings. Moreover, out of 28 studies that explored the causal relationship between school choice and the performance of public schools, 25 found that school choice improves educational attainment in traditional school systems. It is evidence-based results like these that show that competition benefits schools and elevates the student experience. That is why 18 states have embraced some form of universal school choice. The momentum behind this policy juggernaut is coming from parents who want to choose schools equal to their ambitions for their children, and respectful of the values they want to express across the generations. That is why Protect The 1st sees school choice as a quintessential First Amendment issue. It is easy to see why parents love school choice. It is harder to understand why so much of the legacy media clings to old narratives based on shoddy evidence.  President Trump’s recent executive actions on workplace religious freedom and “debanking” are bold initiatives that reinforce our most important First Amendment freedoms. Religion in the Federal Workspace The U.S. Office of Personnel Management recently issued a detailed memorandum that builds on Trump’s earlier executive orders such as “Eradicating Anti‑Christian Bias” and establishing the Religious Liberty Commission. The OPM memo affirms that federal employees are entitled to private expressions of faith equal to secular forms of expression, such as wearing religious jewelry or displaying items of faith on their desks. Expression, whether secular or religious, is still subject to reasonable, viewpoint-neutral restrictions of time, place, and manner. This seems to us in keeping with the Supreme Court’s logic in the 2022 case of the “praying coach,” Kennedy v. Bremerton School District. More than anything, the OPM memo reflects the essence of the First Amendment, an essentially American commitment to protect people of all faiths and creeds. Debanking As we’ve reported, debanking was an informal use of regulatory and commercial power to silence politically disfavored groups defined as posing a “reputational risk” that justifies the closure of their accounts. A blatant example of government using regulatory action to silence disfavored speech was in full view in the Supreme Court’s 2024 unanimous rebuke of New York state regulator Maria T. Vullo. She had twisted the arms of insurance companies and banks to blacklist the nation’s most prominent Second Amendment advocacy group. We also covered the plight of the National Committee for Religious Freedom after it was summarily debanked by Chase Bank. Somehow, this faith-based institution dedicated to freedom, and founded by Sam Brownback, former governor, senator, and U.S. ambassador, was defined under the Orwellian category as being run by a reputationally dangerous “politically exposed” person. President Trump’s executive order now stakes a firm position – no American should be denied banking services for constitutionally protected speech. His order directs regulators to stop using “reputational risk” as a justification for account closures, to investigate possible cases of unlawful debanking, and to reinstate previously affected customers. Removing reputational risk from financial oversight is a concrete step toward clarity and fairness. The Cato Institute further commends the executive order for its focus on investigation over interventions, which Nicholas Anthony judges reflect the prudence of a sound policy, allowing policy to be shaped by evidence. These executive actions are strong and necessary pushbacks against cancel culture overreach through regulation. But both have ambiguities that need to be clarified, and potential pitfalls that must be addressed. Supporting Faith Freedom, Not Proselytizing The Free Speech Center at Middle Tennessee University reports it is unclear the extent to which OPM’s standards override Clinton‑era guidelines. Douglas Laycock, a legal scholar at the University of Texas Law School, told Bloomberg News that the “Clinton document was much more sensitive” to power dynamics between supervisors and employees. “The failure to caution supervisors about how their comments,” he said, “can easily be misunderstood (or correctly understood) as demanding compliance.” Banks in a Bind The debanking order, as welcome as it is, adds yet another regulatory wrinkle to the heavy-handed requirements of the Bank Secrecy Act. Financial institutions are required by current law to send secret “suspicious activity reports” to U.S. Treasury’s Financial Crimes Enforcement Network whenever a customer’s activities fall outside of narrow behavioral parameters. Although most of these reports turn out to have nothing to do with money laundering or terrorism, banks can still be required to debank a customer who inadvertently trips a low threshold of suspicion. Thus, the cross purposes of the Bank Secrecy Act and the new executive order are likely to put financial institutions in an impossible “damned if you do, damned if you don’t” position. We also have to ask if we want to deny banks any ability to legitimately exercise their right of freedom of association in rejecting accounts for groups that offer genuine reputational (and other) risks. Think of the North American Man-Boy Love Association, or the National Socialist White People’s Party. More prosaically, should a bank be liable for cancelling the account of a political group that has a history of overdrafts and financial irresponsibility? Congress needs to follow up to fill in these gaps. Far from weakening the administration’s actions, legislation would bolster these protections in the face of inevitable legal challenges. Credit goes to President Trump for getting the ball rolling on these two areas of discrimination. Lawmakers now have a duty to translate these executive priorities into clear, balanced laws that both avoid unintended consequences while cementing enduring, equitable protections for all Americans. |
Archives
May 2025
Categories
All
|
RSS Feed